Friday, April 2, 2010

The US Supreme Court issued a major decision this week, whereby immigrants must be advised that pleading guilty to a criminal charge could result in removal (deportation).

In the case of Padilla vs. Kentucky, a Vietnam War veteran with permanent residence (green card) had lived in the US legally for over 40 years. He was arrested in 2001 after authorities found 1,000 lbs of marijuana in his truck. Mr. Padilla pleaded guilty to marijuana trafficking, after his criminal lawyer told him that the guilty plea would not affect his immigration status. In fact, this plea rendered Mr. Padilla removable.

The US Supreme Court held that the bad legal advice constituted ineffective assistance of counsel. There exact wording of the decision states that

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.

The New York Times wrote about the decision here . The full text of the Supreme Court decision is here.